Justice in disguise

As the 2001 malpractice trial of Zabin v. Picciotto drew to a close at the end of October, members of the Suffolk Superior Court jury forwarded an unusual request to Judge Mitchell J. Sikora.

Sikora, who now sits on the Appeals Court, was asked if he would allow the jurors to wear costumes to court on Halloween.

After chatting with counsel and hearing no objection from the parties, Sikora gave the jurors a thumb’s up.

On appeal, the defendants, who didn’t fare well at trial, argued to the Appeals Court that the presence of jurors in funny get-ups turned the trial into a circus and denied them their rights to due process.

“With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request,” wrote Judge Mark V. Green, on behalf of the court. “The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings.”

But despite the error committed by his now-colleague, Green said that the issue was waived. He wrote that Sikora did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed.

According to a footnote, the decision to allow costumes in the courtroom wasn’t the only Halloween-themed decision made in the case.

“The defendants also assert that some of the plaintiffs’ counsel handed out candy to the jurors,” wrote Green. “They further claim that, on another occasion, a proposed ‘cast list’ was circulated for a Hollywood movie version of the trial. The record reveals no objection to counsel to any party handing out candy to the jurors or any indication that the ‘cast list’ was circulated to the jury.”

As if that wasn’t enough, an earlier section of the Appeals Court decision tackles a unique argument about the American flag.

The defendants claimed that the absence of an American flag in the courtroom, as required by G.L.c. 220, §1, warranted a mistrial.

“Our review of the transcript reveals that counsel made no objection to proceeding without the presence of an American flag,” wrote Green. “When the issue was raised …. the record indicates that the flag had been borrowed by another court, and was returned to the courtroom before the morning session was over. Moreover, there is no suggestion in [the statute], that the absence of an American flag from the court room requires a new trial.”